Saturday, May 21, 2016

The IRS's Ugly Business as Usual

The Wall Street JournalOpinion‘How
much has really changed?’ a judge asks. Answer: not much. The scandal goes on.

By
Kimberley A. Strassel

Amid the drama that
is today’s presidential race, serious subjects are getting short shrift. No one
is happier about this than Barack Obama. And
no agency within that president’s administration is more ecstatic than the Internal
Revenue Service.

That tax authority’s
targeting of conservative nonprofits ranks as one of the worst federal scandals
in modern history. It is topped only by the outrage that no one has been held
to account. Or perhaps by the news that the targeting continues to this day.

That detail became
clear in an extraordinary recent court hearing, in front of a panel of judges
for the D.C. Circuit Court of Appeals. The paired cases in the hearing were Linchpins
of Liberty, et al. v. United States of America, et al. and True the Vote
Inc. v. Internal Revenue Service, et al. They involve several conservative
nonprofits—there are 41 in Linchpin—that were, as they said, rounded up
and “branded” by the IRS. The groups are still suffering harm, and they want
justice.

A lower-court judge
had blithely accepted the IRS’s claim that the targeting had stopped, that
applications for nonprofit status had been approved, and that the matter was
therefore moot.

The federal judges
hearing the appeal, among them David B. Sentelle and Douglas H. Ginsburg,
weren’t so easily rolled. In a series of probing questions the judges
ascertained that at least two of the groups that are party to the lawsuit have
still not received their nonprofit approvals. The judges determined that those
two groups are 501(c)(4) social-welfare groups, which are subject to far less
scrutiny than 501(c)(3) charities, yet are still being harassed by the IRS five
years later. The judges were told that not only are the groups still on ice,
but that their actions are still being “monitored” by the federal government.

As one lawyer for the
plaintiffs noted, despite the IRS’s claim that it got rid of its infamous
targeting lists, there is “absolutely no showing” that the agency has in fact
stopped using the underlying “criteria” that originally “identified and
targeted for mistreatment based on political views.”

The hearing also
showed the degree to which the IRS has doubled down on its outrageous
revisionist history, and its excuses. IRS lawyers again claimed that the whole
targeting affair came down to bad “training” and bad “guidance.” They blew off
a Government Accountability Office report that last year found the IRS still
had procedures that would allow it to unfairly select organizations for
examinations based on religious or political viewpoint. The lawyers’ argument:
We wouldn’t do such a thing. Again. Trust us.

More incredibly, the
IRS team claimed that the fault for some of the scandal rests with the conservative
groups, for not pushing back hard enough during the targeting. In response to
complaints that the groups had been forced to hand over confidential
information (information the IRS now refuses to destroy), one agency lawyer
retorted: “They didn’t have to give the information to the IRS if they thought
it was inappropriate, they could have said so.” Really.

The government
lawyers also smugly noted that some of the targeted conservative groups had
blown their chance for nonprofit approval when they turned down the IRS’s “fast
track” procedure (an Obama Treasury creation that bestows nonprofit status on
groups that agree to give up their political speech rights). The IRS team even
excused its continuing harassment of these groups by blaming Congress: The
Obama IRS came up with a new rule in 2013 to help “clarify” nonprofit
regulations—by essentially outlawing nonprofit speech—but congressional
Republicans keep blocking it.

At one point, an
incredulous Judge Sentelle noted that the IRS might be more believable if it
had ever shown “a bit more contrition.” He said: “The Court would have to be
awfully ignorant not to recognize that there has likely been an egregious
violation of the First Amendment rights of American citizens by the IRS, and
the IRS to this day seems very resistant to acknowledgment of that.”

An IRS lawyer rolled
out the defense used by former agency official Lois Lerner that the targeting
was just the unfortunate use of “inappropriate” criteria, but Judge Sentelle
reminded the lawyer of the IRS’s vindictiveness. He noted that on one occasion
the IRS simply shelved the application of an organization that had sued it. The
agency “came to Court not having done anything to eliminate” the problem, he
said, so “It’s just hard to find the IRS to be an agency we can trust, isn’t
it?”

Judge Sentelle said
there is a “pretty good case” that “egregious violations of the Constitution”
had been committed, and he dared an IRS lawyer to “stand there with a straight
face” and say otherwise. Judge Ginsburg, who spent the hearing catching out the
IRS’s conflicting statements, at one point simply asked: “How much has really
changed?”

Answer: not much. It
was good news, then, that the House Judiciary Committee recently announced it
will hold two hearings to examine the conduct of IRS Commissioner John Koskinen in
this matter. Donald
Trump, as the presumptive GOP nominee, could do worse than to use his
megaphone to draw attention to the hearings. The IRS scandal needs to remain a
story.

About This Blog & the National Black Republican Association

Lieutenant Colonel Frances Rice, United States Army, Retired is a native of Atlanta, Georgia and retired from the Army in 1984 after 20 years of active service. She received a Bachelor of Science degree from Drury College in 1973, a Masters of Business Administration from Golden Gate University in 1976, and a Juris Doctorate degree from the University of California, Hastings College of Law in 1977.
In 2005, she became a co-founder and Chairman of the National Black Republican Association, an organization that is committed to returning African Americans to their Republican Party roots.
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Email contact: NationalBlackRepublican@Gmail.com